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Some Observations on the Bank Secrecy Act

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Some Observations on the Bank Secrecy Act Catholic University Law Review Volume 37 Issue 2 Winter 1988 Article 6 1988 Hue and Cry in the Counting-House: Some Observations on the Bank Secrecy Act Jonathan J. Rusch Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation Jonathan J. Rusch, Hue and Cry in the Counting-House: Some Observations on the Bank Secrecy Act, 37 Cath. U. L. Rev. 465 (1988). Available at: https://scholarship.law.edu/lawreview/vol37/iss2/6 This Symposium is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. HUE AND CRY IN THE COUNTING-HOUSE: SOME OBSERVATIONS ON THE BANK SECRECY ACT Jonathan J. Rusch* One of the stranger vicissitudes in our society is the extent to which cash has become more important as a medium of exchange in illegal transactions than in legal transactions. While "cash is a highly suitable means of pay- ment for many transactions,"' it is not the preferred method of payment by Americans for legitimate transactions. 2 In contrast, cash is virtually indis- pensable for a wide range of illegal activities, including drug trafficking, ille- gal gambling, prostitution, loansharking, bribery, extortion, tax evasion, and other financial offenses.3 Unlike other financial instruments, cash freely cir- culates throughout the population, is customarily used and accepted as a medium of exchange, and does not routinely return to the issuing institution. Law enforcement authorities, therefore, encounter substantial difficulties in reconstructing audit trails when cash is used in illegal activities. Those difficulties are compounded by the sheer volume of cash that is traceable to some form of illegal activity. According to a 1986 survey com- missioned by the Board of Governors of the Federal Reserve System: * United States Department of the Treasury, Washington, D.C. The views expressed herein are solely those of the author, and do not necessarily reflect those of the Department of the Treasury or any other federal department or agency. 1. Changes in the Use of TransactionAccounts and Cash from 1984 to 1986, 73 Fed. Res. Bull. 179, 186 (1987) [hereinafter FederalReserve Study]. The FederalReserve Study reports the results of a survey, commissioned in 1986 by the Board of Governors of the Federal Re- serve System, to determine how various changes, such as the greater availability of automated teller machines, have affected the payment practices of American families. Id. at 179. 2. According to the FederalReserve Study, main checking accounts constituted the most prevalent methods of payment for aggregate household expenditures (39%). Id. at 180 (Table 1). Cash constituted 34% of such expenditures, while credit cards and savings or money mar- ket accounts each constituted only 8% of such expenditures. Id. Moreover, the survey found that the usage rate (i.e., turnover) of cash declined between 1984 and 1986, perhaps in response to the lowering of interest rates during that period. Id. at 189-90. 3. See, e.g., White Collar Crime (Money Laundering): Hearings Before the Senate Comm. on the Judiciary, 99th Cong., 2d Sess. 129 (1986) (statement of William F. Weld, U.S. Attorney for the District of Massachusetts); THE PRESIDENT'S COMMISSION ON ORGANIZED CRIME, INTERIM REPORT TO THE PRESIDENT AND THE ATTORNEY GENERAL, THE CASH CONNECTION: ORGANIZED CRIME, FINANCIAL INSTITUTIONS, AND MONEY LAUNDERING 7-13, 29-49 (1984) [hereinafter PCOC REPORT]. Catholic University Law Review [Vol. 37:465 [A]dult U.S. residents in the aggregate held about $20 billion in cash, which they used for transactions. This total amounted to about 11 percent of the stock of currency or coin in circulation outside banks, which was $177.4 billion at the time of the survey. Thus, in 1986 as in 1984, a large percentage of the U.S. currency stock was apparently held in unreported hoards, "underground" for illegitimate purposes, or offshore.4 Criminals who supervise large-scale illegal activities encounter an array of problems in handling large quantities of cash. Purveyors of illegal goods and services, such as drug trafficking, illegal gambling, and prostitution, accumu- late large quantities of small-denomination bills from retail sales. Some sup- pliers of vital raw materials for illegal drug production may be unwilling to accept payment in these small-denomination bills.5 Other criminals may be willing to accept cash, but want it converted into a more portable and con- cealable form. Even if the criminal is holding the currency for his own use, the sheer bulk of that currency may impel him to convert it into some other form that can be concealed more readily from detection by law enforcement authorities and disguised to appear legitimate. 6 To effect that concealment and disguise, the criminal has only two principal alternatives: to introduce the cash into a financial institution 7 for deposit, transfer, or exchange; or to 4. Federal Reserve Study, supra note 1, at 191. 5. See PRESIDENT'S COMMISSION ON ORGANIZED CRIME, ORGANIZED CRIME AND HEROIN TRAFFICKING 206 (1985) (testimony of Leroy Barnes, convicted heroin trafficker). Different types of illegal activities may involve different denominations of bills received from purchasers. One money launderer who had been active in the Miami area testified in 1986 that he and his associates referred to $5 and $10 bills as "marijuana money" and $20, $50, and $100 bills as "cocaine money." Tax Evasion, Drug Trafficking and Money Laundering as They In- volve FinancialInstitutions: Hearings on H.R. 1367, H.R. 1474, H.R. 1945, H.R. 2785, H.R. 3892, H.R. 4280, and H.R. 4573 Before the Subcomm. on FinancialInstitutions Supervision, Regulation and Insurance of the House Comm. on Banking, Finance and Urban Affairs, 99th Cong., 2d Sess. 79, 85 (1986) [hereinafter Tax Evasion Hearings](testimony of Herb Friedberg, former money launderer). 6. A commonly accepted definition of money laundering is "the process by which one conceals the existence, illegal source, or illegal application of income, and then disguises that income to make it appear legitimate." PCOC REPORT, supra note 3, at 7 (footnote omitted). One example of the need to reduce the bulk of currency from illegal activities concerned a money laundering operation that made use of several Atlantic City casinos. At one casino, money launderers deposited throughout the day a total of $1,187,450 in small-denomination bills. PRESIDENT'S COMMISSION ON ORGANIZED CRIME, ORGANIZED CRIME AND GAM- BLING: RECORD OF HEARING VII 591 (1985) (testimony of Martin Molod, Revenue Agent, Internal Revenue Service). According to calculations based on data from the Bureau of En- graving and Printing, that deposit weighed approximately 280 pounds and measured 5.81 cu- bic feet. Id. at 593. After gambling with these funds for a time, the launderers withdrew $800,000 in $100 bills. Id. at 594. This withdrawal is estimated to have weighed 16 pounds and to have measured one-third of a cubic foot. Id. at 594-95. 7. The term "financial institution" includes not only financial institutions that engage in 19881 Observations On The Bank Secrecy Act transport the cash out of the country for similar purposes at a foreign finan- cial institution. I. BANK SECRECY ACT REPORTING REQUIREMENTS To deal with concealment and disguise of currency, Congress passed legis- lation in 1970 that has become commonly known as the Bank Secrecy Act (BSA).8 The BSA vests substantial authority in the Department of the Treasury (Treasury) to require the filing of reports and the maintenance of records that have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings.9 The BSA and the implementing regulations that the Treasury promulgated thereunder require the routine filing of four types of reports: 1. The Currency Transaction Report (CTR). A financial institution other than a casino must file a CTR (also known as Internal Revenue Service (IRS) Form 4789) for "each deposit, withdrawal, exchange of currency or other payment or transfer, by, through, or to such financial institution which involves a transaction in currency of more than $10,000."' Banks" may unilaterally exempt limited types of currency transactions by certain speci- fied categories of customers (such as deposits or withdrawals by retail sellers of certain goods and services) from the CTR reporting requirements, and may apply to the IRS for additional authority to exempt other types of busi- 1 2 nesses and transactions. banking services, but also other financial institutions, such as casinos and currency exchanges, that carry out functions similar or related to those offered by the banking community. See Bank Secrecy Act, 31 U.S.C. § 5312(a)(2) (1982), amended by 31 U.S.C.A. § 5312(a)(2)(T) (West Supp. 1987) [hereinafter BSA]; 31 C.F.R. § 103.11(g) (1987). 8. Pub. L. No. 91-508, 84 Stat. 1114 (1970) (codified as amended at 12 U.S.C. §§ 1730d, 1829b, 1951-1959 (1982 & Supp. IV 1986) and 31 U.S.C. §§ 321, 5311-5324 (1982 & Supp. III 1985), amended by 31 U.S.C.A. §§ 5312(a)(2)(T), (u)(5), 5316(a)(1)-(2), 5316(d), 5317(b)-(c), 5318(a)-(f), 5321(a)(1), (4)-(6), 5321 (b)-(d), 5322(a)-(c), 5323(a)-(d), 5324 (West Supp. 1987)). 9. See 12 U.S.C. §§ 1829b, 1951 (1982); 31 U.S.C. § 5311 (1982). 10. 31 C.F.R. § 103.22(a)(1) (1987); see also 31 U.S.C. § 5313(a) (1982). The regulations define a "transaction in currency" as "[a] transaction involving the physical transfer of cur- rency from one person to another." 31 C.F.R.
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